The Center for Democracy & Technology wants the government to shut down a …

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When our own Timothy B. Lee stepped into a Philadelphia dentist's office earlier this year, he had an unpleasant experience: the dentist required him to sign over control of all copyright in future online commentary related to that dentist. Here's how Tim described the visit:

When I walked into the offices of Dr. Ken Cirka, I was looking for cleaner teeth, not material for an Ars Technica story. I needed a new dentist, and Yelp says Dr. Cirka is one of the best in the Philadelphia area. The receptionist handed me a clipboard with forms to fill out. After the usual patient information form, there was a "mutual privacy agreement" that asked me to transfer ownership of any public commentary I might write in the future to Dr. Cirka. Surprised and a little outraged by this, I got into a lengthy discussion with Dr. Cirka's office manager that ended in me refusing to sign and her showing me the door.

The contract in question came from Medical Justice, which claims to be "relentlessly protecting physicians from frivolous lawsuits." Over the last few years, the company has pioneered a strange niche in the medical business: providing contractual templates that first barred patients from commenting about their doctors online and later gave doctors the power to veto negative reviews.

Is this legal? The Center for Democracy & Technology (CDT) filed a complaint today with the Federal Trade Commission (FTC) arguing that Medical Justice was itself engaging in "deceptive and unfair business practices" through the sale of these contracts.

The complaint argues that Medical Justice is "engaging in a deceptive business practice by selling contracts which are themselves deceptive to doctors and patients as to whether they are legally enforceable."

The complaint also cites an Ars Technica investigation into Medical Justice's alleged placing of positive reviews to Yelp. The company has "seemingly engaged in a deceptive business practice" by making such posts, says the complaint. (Medical Justice told us when that piece ran that it had submitted the comments, but had done so on behalf of real patients.)

CDT asks that Medical Justice be barred from selling these kinds of contracts to doctors, that it alert doctors who have already purchased them that the contracts are "likely unenforceable and illegal," and that it give up all money earned from the sale of the contracts.

In a blog post, complaint author Justin Brookman calls the entire scheme pointless. "There's no countervailing benefit to these contracts—doctors who think they're being defamed already have remedies under the law, and can sue to unmask (and receive damages from) commenters who make libelous statements," he says. "Medical Justice contracts are merely intended to short-circuit the established legal process for combating unwanted anonymous speech, and instead give doctors the chance to fraudulently curate their online reputation by pruning away inconvenient statements."

Hmm, it seems a little unfair for Brookman to call the doctors fraudulent -- it seems much more likely that the doctors simply were ignorant of the law and were (ironically) sold bottles of anti-complainer snake oil. It isn't too hard to understand why doctors might want something like that; it is true that there is a bias towards negative reviews for doctors since most people don't yet think of doctors as something one can review or look for reviews on unless they have a bad experience.

Obviously that doesn't justify silencing them with one of these "contracts" and hopefully these 'Medical Justice' folks will get some justice for their own.

When I bought my pickup, and rented my last place, both time the office person remarked on being surprised that I read the whole thing, in detail.

The rentors got irritable because every time they said "Oh, we don't enforce that" or didn't know what something meant, I scratched it out and made 'em sign it.

Sounds like my first car buying experience (well, my first retail experience). I was reading the contract for the vehicle and the salesman started getting irritable, saying just sign it already. At which point I said, there's obviously something in here you don't want me to read. Then I walked out and purchased at another dealership. Any time someone get antsy about you reading their contract in full or suggests terms that are different from what's written in the contract (written contracts are always taken over any verbal agreement if a court case arises), it's time to look elsewhere.

As for this article. I remember the first article about this nonsense. And I remember feeling the same way then as now. Anyone who writes false information can be sued by the doctor. However, patients are free to express dismay if they feel they had a poor experience. Maybe the doctor was too curt with them. Maybe they felt the doctor didn't listen or didn't spend enough time with them. Possibly they feel the doctor overbooked and therefore the patient's wait was too long. Patients should have the right to express any opinion they feel about the doctor whether negative or positive. More importantly, doctors should not have the right to delete opinions of themselves that aren't sterling. Rather they might like to read the negative opinions and maybe change their behavior so that future patients don't end up walking away with similar feelings. That, and grow a thicker skin. You'll never please everybody.

That's why you read things before signing. I can't believe people just sign 10 pages of legalese that may contain all kinds of nefarious provisions without reading it.

It's comes down to trust I suppose. You trust the doctors to be professional and loook after you.

Evidently, that trust is misplaced in some doctors.

Also there's a certain level of duress involved. You're being forced to sign a contract waiving your rights in order to get care when you're at the doctor/dentist likely in pain. Many folks are all to happy to sign whatever is put in front of them so they can just get whatever their issue is taken care of. Can't really blame them, especially at the dentist. Tooth pain is the worst kind of pain.

That's why you read things before signing. I can't believe people just sign 10 pages of legalese that may contain all kinds of nefarious provisions without reading it.

It's comes down to trust I suppose. You trust the doctors to be professional and loook after you.

Evidently, that trust is misplaced in some doctors.

Also there's a certain level of duress involved. You're being forced to sign a contract waiving your rights in order to get care when you're at the doctor/dentist likely in pain. Many folks are all to happy to sign whatever is put in front of them so they can just get whatever their issue is taken care of. Can't really blame them, especially at the dentist. Tooth pain is the worst kind of pain.

Not only that, but in some practices a patient cancelling an appointment within 24 hours of the appointed time incurs a fee.

Rather they might like to read the negative opinions and maybe change their behavior so that future patients don't end up walking away with similar feelings. That, and grow a thicker skin. You'll never please everybody.

Assuming there's some foundation to the negative opinion. Also I wonder how well that "thicker skin" advice would work if it was applied to patients? Goose? Gander? Didn't think so.

Wheels Of Confusion wrote:

Not only that, but in some practices a patient cancelling an appointment within 24 hours of the appointed time incurs a fee.

Couldn't be because some patients abuse a privilege, could it? Anyway around here it's more like, if you repeatedly miss appointments, then you're no longer, a patient.

That's why you read things before signing. I can't believe people just sign 10 pages of legalese that may contain all kinds of nefarious provisions without reading it.

It's comes down to trust I suppose. You trust the doctors to be professional and loook after you.

Evidently, that trust is misplaced in some doctors.

Trusting the doctors to be professional and look after you is always, always, always a mistake. Your incentives and their incentives are misaligned. You want to live a long, healthy, happy, productive life. They want to care for you in the way that they have been trained, to be well compensated, to not be sued, to go home at a reasonable hour and to earn the respect of their peers. (This isn't even taking into account the not insignificant chance that the doc is incompetent, ill-informed or informed by a pharmaceutical company.)

It is your life and your health. It is also your responsibility to know what is being done to your body and to ensure that those actions are inline with your values and best interests.

Also I wonder how well that "thicker skin" advice would work if it was applied to patients? Goose? Gander? Didn't think so.

So, the patient is supposed to put up with anything the service provider dishes out? The patient is the consumer, the doctor is supposed to be catering to the consumer. If they can't manage that, they deserve every foul opinion offered up about them.

Yelp can make or break a business. I've seen first hand how the threat of a negative yelp review can be abused. People will outright lie in a negative review and totally exaggerate things just because someone didnt bend over backwards to kiss their ass.

Yelp can make or break a business. I've seen first hand how the threat of a negative yelp review can be abused. People will outright lie in a negative review and totally exaggerate things just because someone didnt bend over backwards to kiss their ass.

Nonsense. If I see one or two negative reviews in a sea of positive reviews, I'm going to ignore the negative reviews as the extreme rather than the norm. If the bulk of reviews are negative, there's a likely reason for that. More importantly is that a user can be outed and sued if their claim is patently false.

Yelp can make or break a business. I've seen first hand how the threat of a negative yelp review can be abused. People will outright lie in a negative review and totally exaggerate things just because someone didnt bend over backwards to kiss their ass.

Nonsense. If I see one or two negative reviews in a sea of positive reviews, I'm going to ignore the negative reviews as the extreme rather than the norm. If the bulk of reviews are negative, there's a likely reason for that. More importantly is that a user can be outed and sued if their claim is patently false.

And in the meantime the damage is done. I hope none of you ever have a crisis concerning your reputations, otherwise you'd understand just how important they are, how easy to lose, and how difficult to fix.

Nagumo wrote:

Quote:

Also I wonder how well that "thicker skin" advice would work if it was applied to patients? Goose? Gander? Didn't think so.

So, the patient is supposed to put up with anything the service provider dishes out? The patient is the consumer, the doctor is supposed to be catering to the consumer. If they can't manage that, they deserve every foul opinion offered up about them.

Also I wonder how well that "thicker skin" advice would work if it was applied to patients? Goose? Gander? Didn't think so.

So, the patient is supposed to put up with anything the service provider dishes out? The patient is the consumer, the doctor is supposed to be catering to the consumer. If they can't manage that, they deserve every foul opinion offered up about them.

Agreed totally, I personally complain about my father's doctor, mentioning him by name, on a regular basis. Why? Because the fact is that the jerkwad (or his office) keep on losing my father's paperwork on a regular basis.

Charts, referrals (even though he doesn't really need one, he still gets them just in case), etc. You name it, the idiots have lost it.

Doctors need to challenge their patients negative reviews with facts. Now, I COULD say that if you post a negative review of a doctor, that you give up patient confidentially about the thing that you complained about and the doctor has the right to post what he did and compare it to what other doctors did and do.

Yes, clearly because you think doctors are beyond reproach and should not have to deal with any negative feedback. Gotcha. I choose to live in the real world where some incompetent doctors exist, and patients have a right to expose them for what they are.

Yelp can make or break a business. I've seen first hand how the threat of a negative yelp review can be abused. People will outright lie in a negative review and totally exaggerate things just because someone didnt bend over backwards to kiss their ass.

Nonsense. If I see one or two negative reviews in a sea of positive reviews, I'm going to ignore the negative reviews as the extreme rather than the norm. If the bulk of reviews are negative, there's a likely reason for that. More importantly is that a user can be outed and sued if their claim is patently false.

That's great if you have a sea of reviews. Most businesses don't. Very few people will actually write a positive yelp review and you have to practically beg people to write a positive review (and they usually forget the vast majority of the time) even if you did a kick ass job. Get one or two bad reviews from yelpers with an axe to grind and due to filtering those bad reviews are stuck on your front page forever unless you pay to get the bad yelp review removed.

If there are only one or two reviews, regardless if they're negative or positive, I would just ignore them. Obviously, if they're negative the business isn't doing anything to really outrage people if there's only one or two reviews. It's common knowledge that negative experiences are 10 times more likely to be voiced than positive experiences.

Not only that, but in some practices a patient cancelling an appointment within 24 hours of the appointed time incurs a fee.

If you arrive for the appointment prepared to pay, and they ask you to sign an additional agreement before they treat you, then you could just walk out. The original agreement to pay was under the implicit condition that you were treated. If they refuse to treat you, then they're the ones that have broken the agreement implicit in the original booking.

Yes, clearly because you think doctors are beyond reproach and should not have to deal with any negative feedback. Gotcha. I choose to live in the real world where some incompetent doctors exist, and patients have a right to expose them for what they are.

No, because of the inflexibility of your position. The post below mine talked about professional ethics on the part of doctors. Well how about we address the "professional" responsibilities of patients to be both honest and accurate. How about we look at the larger scope of reviews and reputations? It's not like anyone on this forum will ever have to deal with such a situation, right?

This reminds me of a job I had, and all of the employees were layed off. We had to sign a paper stating we couldn't say anything bad to the media about it, or we would not get the severance package.

In my opinion things like this should be illegal.

A couple years ago I left a negative review about a doctor I had at the time. I honestly believe all the people working there were racist against white people (all Hispanics working there). Even my mother said the same, even though I hadn't mentioned it to her.

Yes, clearly because you think doctors are beyond reproach and should not have to deal with any negative feedback. Gotcha. I choose to live in the real world where some incompetent doctors exist, and patients have a right to expose them for what they are.

No, because of the inflexibility of your position. The post below mine talked about professional ethics on the part of doctors. Well how about we address the "professional" responsibilities of patients to be both honest and accurate. How about we look at the larger scope of reviews and reputations? It's not like anyone on this forum will ever have to deal with such a situation, right?

Which is already addressed in libel laws. Any doctor demanding complete control of your comments via copyright deserves to go out of business.

Right, so the doctor gets assigned the copyright on the negative review. Then what? Given that the "work" has no commercial value, it's pretty clear the whole thing is outside of the contours of copyright law. There are so many ways a copyright suit could be blown out of the water it's not even funny. They think they are being clever creating a backdoor non-disparagement clause, presumably using copyright to expand the scope and damages. That kind of "clever" usually pisses off judges.

One wonders if in at least some jurisdictions selling those bogus contracts might get them in trouble/create liability for providing legal advice without a license.

So what do you think about a policy of sneaking or pressuring copyright assignment to the person you're supposed to be evaluating, Ostracus?

Depends. Is the gold standard still presumption of guilt?

I don't think you quite understood me, but that might be a generous interpretation going by your history in copyright threads.

Springing copyright agreements on a patient just before an appointment, the cancellation of which can incur fees, sets up a system in which the patient is pressured to relinquish control over anything they say about the doctor. I'm okay with informed deals that trade copyrights or patents or what have you. But that information should be provided long before any monetary (or worse, medical!) commitment that would influence the deal either way. If someone is surprised to find that they have to sign away their ownership of any criticism or praise just before an appointment, then they were obviously not adequately informed.I also think it's counterproductive to set up a system in which people seeking a service are pressured into effectively having fewer means of informing others the service they receive. This defeats the kind of information that should be driving a free market. How skewed is the reputation of a doctor's office that systematically removes critical reviews on popular internet sites? Or posts positive reviews that weren't submitted to the site by the patient? This kind of reputation gaming does more damage to the credibility of the industry than the potential for un-managed comments. I feel it defeats the entire purpose of having reviews at all.

So my question is basically, do you favor giving the people that are being reviewed the power to override negative reviews, regardless of merit, i.e. give the final say over to the party being reviewed? That's essentially what's being proffered under these copyright assignment deals. Furthermore, does the existence of real pressures for patients to sign over their rights quickly, or under threat of being charged to break an appointment change your opinion in any way?

And speaking of presumption of guilt, your posts sure imply that many negative reviews are false and malicious attempts at damaging reputations.

Lliwynd wrote:

Wheels Of Confusion wrote:

Not only that, but in some practices a patient cancelling an appointment within 24 hours of the appointed time incurs a fee.

If you arrive for the appointment prepared to pay, and they ask you to sign an additional agreement before they treat you, then you could just walk out. The original agreement to pay was under the implicit condition that you were treated. If they refuse to treat you, then they're the ones that have broken the agreement implicit in the original booking.

The idea that doctors, etc., should be insulated from negative feedback is just silly.

Even in the past (pre omnipresent internet), word of mouth would have the same kind of results (if someone thinks you sucked, they were going to say it, anyway).

The internet is just word of mouth, writ large. Yes, with all of the pitfalls of the 'greater internet fuckwad theory' to go along with it.

It's one thing to say that malicious negative reviews are bad, it's another thing to say that someone can't (ever) say anything negative because of a really stupid contract for weak kneed doctors enabled by moron lawyers.

Since there are already a full suite of remedies available to the doctor (etc.) for libel, slander and so forth, the benchmark here has to be in favor of the free speech of the reviewer.

It is far more important that the right to disparage (especially when justified), significantly supersedes the wishes of the doctor who is too thin skinned to accept valid criticism. And if it truly isn't valid, the doctor is fully free to respond, and if applicable, seek redress for libel, etc.

A fair number of legitimate businesses actually use customer criticism to improve their service.

A doctor using the 'Medical Justice' is basically telling me that they're not interested in improving their service, and are, instead, actively telling me to use another provider.

That's great if you have a sea of reviews. Most businesses don't. Very few people will actually write a positive yelp review and you have to practically beg people to write a positive review (and they usually forget the vast majority of the time) even if you did a kick ass job.

All businesses face the same barrier. Yelp is there to help users identify *the best* business, not to identify all of the good ones. As a result, if one business in the category is able to motivate more people to write good Yelp reviews about it than its competitors can, then it is likely better than them, even if they themselves are perfectly decent. Also, most people are not stupid – they know that most online small business reviews are written by people who are wither awed or pissed off, and read those reviews with this in mind.

That's great if you have a sea of reviews. Most businesses don't. Very few people will actually write a positive yelp review and you have to practically beg people to write a positive review (and they usually forget the vast majority of the time) even if you did a kick ass job. Get one or two bad reviews from yelpers with an axe to grind and due to filtering those bad reviews are stuck on your front page forever unless you pay to get the bad yelp review removed.

That doesn't matter. Most people know that people are more likely to write a review online deriding a business, any business, than to write a positive review of them, so they take the reviews with a little 'grain of salt'.

So what do you think about a policy of sneaking or pressuring copyright assignment to the person you're supposed to be evaluating, Ostracus?

Depends. Is the gold standard still presumption of guilt?

I don't think you quite understood me, but that might be a generous interpretation going by your history in copyright threads.

Springing copyright agreements on a patient just before an appointment, the cancellation of which can incur fees, sets up a system in which the patient is pressured to relinquish control over anything they say about the doctor. I'm okay with informed deals that trade copyrights or patents or what have you. But that information should be provided long before any monetary (or worse, medical!) commitment that would influence the deal either way. If someone is surprised to find that they have to sign away their ownership of any criticism or praise just before an appointment, then they were obviously not adequately informed.I also think it's counterproductive to set up a system in which people seeking a service are pressured into effectively having fewer means of informing others the service they receive. This defeats the kind of information that should be driving a free market. How skewed is the reputation of a doctor's office that systematically removes critical reviews on popular internet sites? Or posts positive reviews that weren't submitted to the site by the patient? This kind of reputation gaming does more damage to the credibility of the industry than the potential for un-managed comments. I feel it defeats the entire purpose of having reviews at all.

So my question is basically, do you favor giving the people that are being reviewed the power to override negative reviews, regardless of merit, i.e. give the final say over to the party being reviewed? That's essentially what's being proffered under these copyright assignment deals. Furthermore, does the existence of real pressures for patients to sign over their rights quickly, or under threat of being charged to break an appointment change your opinion in any way?

And speaking of presumption of guilt, your posts sure imply that many negative reviews are false and malicious attempts at damaging reputations.

The doctor presents one of the contracts mentioned in the article AND they charge a 24hr cancellation fee. The article sticks with the meat and leaves off the potato. Also while you have some valid points, the article gets it right by laying the blame on Medical Justice. The real foundational problem however isn't addressed which is the abuse of reviews by patients.

Wheels Of Confusion wrote:

And speaking of presumption of guilt, your posts sure imply that many negative reviews are false and malicious attempts at damaging reputations.

I was just wondering, if a doctor made you sign a contract preventing negative reviews, would you even want to go to him, considering he making you sign a contract preventing you from saying how bad he is.. i would be asking the doctor where in the bottom 20% of his class did he gradudate from

Do you guys even understand the magnitude of this ?The doctor could potentially sue him for Copyright Infringement any time he wanted in the future.He didn't just waive his ownership of any medical public commentary, but of any public commentary AT ALL.

And what constitutes public commentary ? Define it, legally please. It can be almost anything froma skit parodying dentists (say the patient is a playwright) to your basic forum comment.

How can anybody get behind this and support this doctor's POV amazes me (unless it's the good doctor himself).

Not only that, but in some practices a patient cancelling an appointment within 24 hours of the appointed time incurs a fee.

If you arrive for the appointment prepared to pay, and they ask you to sign an additional agreement before they treat you, then you could just walk out. The original agreement to pay was under the implicit condition that you were treated. If they refuse to treat you, then they're the ones that have broken the agreement implicit in the original booking.

I doubt very much that this holds any water. The fees exist to cover the cost incurred from not being able to book another patient to fill your time slot, not on any condition of treatment. If you were booked for 1:30, someone else wasn't. So if you cancel, it's sunk opportunity. That's what the fee is for. You're paying for the privilege of the appointment.

The real problem with the current remedies is that pursuing a libel claim takes a long time and costs a lot of money, and against private citizens even if you win, they likely won't be able to pay your costs anyway.

By the time the case is won, the damage is done and later removal or retraction doesn't fix your reputation because no-one goes back and see that they have changed.

While I agree that the contracts involved are probably illegal and generally a bad thing, for private practitioners (ie all american ones) they neither want to be involved in costly and difficult to win litigation nor to have their reputations damaged.

What they should be doing (and the websites where reviews are posted) is reminding patients that their comments online can potentially be libelous and that liers will end up being taken to court. My guess is that the vast majority of people who post bad reviews are angry that treatment wasn't as effective as they hoped or hurt more than they expected or similar and are venting their frustration. An unskippable reminder before every post saying 'Do not post lies, count to ten and think rationally' would go a long way to stopping that.

If anything, bad reviews when a doctor or dentist actually did their job properlly hurt the consumers more than anyone else because it makes it impossible for people to make educated choices which is the whole idea of the system.